The Doctor's Dilemma: Paternalisms in the Medicolegal History of Assisted Reproduction and Abortion

Guttmacher A. F. , “Abortion: Odyssey of an Attitude,” Family Planning Perspectives 4, no. 4 (1972): 5–7, at 6.

Guttmacher A. F. , “Artificial Insemination,” DePaul Law Review 18, nos. 2&3 (1969): 566–583, at 571.

Guttmacher A. F. , “Therapeutic Abortion: The Doctor's Dilemma,” Mount Sinai Journal of Medicine 21, no. 3 (1954): 111–121 (emphasis added).

In order to focus on paternalism, this article sets asides regulatory justifications based on social harm, and harm to the fetus, although these justifications also have a long history. See, for example, Siegel R. , “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44, no. 2 (1992): 261–381, at 287–313.

Roe v. Wade, 410 U.S. 113, 149 (1973). For the origins of these laws, see Mohr J. C. , Abortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York: Oxford University Press, 1978), and Smith-Rosenberg C. , “The Abortion Movement and the AMA, 1850–1880,” in Smith-Rosenberg C. , Disorderly Conduct: Visions of Gender in Victorian America (New York: Knopf, 1985): At 217–44. For the Court's use of this history, see Siegel, supra note 4, at 277–280.

See Mohr , supra note 5, at 254–255; Guttmacher A. F. , “The Genesis of Liberalized Abortion in New York: A Personal Insight,” Case Western Reserve Law Review 23, no. 4 (1972): 756–778, at 756.

Mill John Stuart , relied upon by many American political theorists, was a famous opponent of any limitation other than the prevention of harm to others. See Mill J. S. , On Liberty , 2nd ed. (Boston: Ticknor & Fields, 1863): At 23. For recent debates about the appropriate role of paternalism in law and philosophy, see Coons C. Weber M. , eds., Paternalism: Theory and Practice (Cambridge: Cambridge University Press, 2013) and Sunstein C. R. , Why Nudge? The Politics of Libertarian Paternalism (New Haven: Yale University Press, 2014).

In addition to the works cited infra and supra, see, e.g., “Legal Bibliography of Recent Articles,” Women's Rights Law Reporter 1 (1971–1974): 105–108 (listing articles critiquing legal limits on abortion and contraception access, and permitting involuntary sterilization); Gordon L. , Woman's Body, Woman's Right: A Social History of Birth Control in America (New York: Vintage, 1976); Kluchin R. M. , Fit to Be Tied: Sterilization and Reproductive Rights in America, 1950–1980 (New Brunswick, NJ: Rutgers University Press, 2009).

The relationship between equality and reproductive rights is reviewed, for example, in Siegel R. B. , “Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression,” Emory Law Journal 56, no. 4 (2007): 815–842. For an early feminist critique of paternalism in reproductive medicine, see Ruzek S. B. , The Women's Health Movement: Feminist Alternatives to Medical Control (New York: Praeger, 1978).

See, for example, Solinger R. , Wake Little Susie: Single Pregnancy and Race before Roe v. Wade, 2nd ed. (New York: Routledge, 2000); Roberts D. , Killing the Black Body: Race, Reproduction and the Meaning of Liberty (New York: Pantheon Books, 1997). Although this article focuses on abortion and assisted reproduction, paternalism in reproduction has extended to contraception, sterilization, and adoption policies as well.

For the marketplace, see Spar D. L. , The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception (Boston: Harvard Business School Press, 2006), and for one recent call for regulation, see Cahn N. R. , Test Tube Families: Why the Fertility Market Needs Legal Regulation (New York: New York University Press, 2009).

See Guttmacher , supra note 2, at 571.

Speert H. , “Memorable Medical Mentors: XV, Alan F. Guttmacher (1898–1974),” Obstetrical and Gynecological Survey 61, no. 2 (2006): 73–76, at 73.

Jaffe F. S. , “Alan F. Guttmacher, 1898–1974,” Family Planning Perspectives 6, no. 1 (1974): 1–2, at 1–2.

Guttmacher's written publications are too extensive to list, but include medical articles, law review articles, popular articles, and popular books. His papers are collected as the Alan F. Guttmacher papers, 1860s, 1898–1974. H MS c155. Harvard Medical Library, Francis A. Countway Library of Medicine, Boston, Mass. (hereafter, “Guttmacher Papers”). For attitudinal shifts by medical professionals toward abortion, see Luker K. , Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1985): At 40–91, and toward donor insemination, see Marsh M. Ronner W. , The Empty Cradle: Infertility in America from Colonial Times to the Present (Baltimore: Johns Hopkins University Press, 1999): At 163–167, 227–229; and Swanson K. W. , “The Birth of the Sperm Bank,” Annals of Iowa 71, no. 3 (2012): 241–276, at 244–246, 274.

See Guttmacher , supra note 1, at 6.

Id., at 7; Guttmacher A. F. Pilpel H. F. , “Abortion and the Unwanted Child,” Family Planning Perspectives 2, no. 2 (1970): 16–24, at 19 (“I am not in favor of abortion on demand”); and Guttmacher A. F. , “A Defense of the Supreme Court's Abortion Decision,” Humanist 33, no. 3 (1973): 6–7, at 7 (“I strongly support the right to abortion on request”).

Reagan L. J. , When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997): At 5.

Id., at 8–9.

See Mohr , supra note 5, at 119–170; and Smith-Rosenberg, supra note 5.

See Guttmacher , supra note 6, at 756; see also Guttmacher, supra note 1, at 5.

See Guttmacher , supra note 3, at 111.

See Guttmacher , supra note 1, at 5; supra note 6, at 756–757.

See Reagan , supra note 17, at 67, 175–175. See also Luker , supra note 14, at 73.

Proof of such discrimination was collected at New York hospitals in the 1950s. See Guttmacher , supra note 1, at 6; and supra note 6, at 760–761.

See Guttmacher , supra note 1, at 5. The Guttmacher Papers contain correspondence between Guttmacher and a Japanese abortionist, Keizo Tahara, Folders 23–24, Box 1. Guttmacher explained how to refer patients to Japan in Letter to Leo J. Holmsten, Nov. 18, 1968, Folder 12, Box 1, Guttmacher Papers.

See Guttmacher , supra note 1, at 5; and supra note 6, at 757–758.

See Guttmacher , supra note 1, at 5–6; and supra note 6, at 759.

See Guttmacher , supra note 1, at 6.

See Luker , supra note 15, at 56–57; and Reagan , supra note 18, 173–181.

See Guttmacher , supra note 1, at 6; and supra note 6, at 761.

Article 230.3(2), Model Penal Code, American Law Institute (1962).

Committee on Human Reproduction, American Medical Association, report in support of proposal on therapeutic abortion, June 1967, reprinted in Greenhouse L. Siegel R. , eds., Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court's Ruling (New York: Kaplan, 2010): At 25–28.

See Guttmacher , supra note 1, at 7.

Id., at 6.

Guttmacher A. F. , Text of Presentation to Kansas Medical Society, “Legal Abortion with and without a Law,” April 30, 1969, Folder 7, Box 12, Guttmacher Papers.

See Guttmacher , supra note 1, at 6–7. But see Luker , supra note 14, at 94 (“by late 1970, of all women who applied for an abortion [in California] 99.2 percent received one”).

See Guttmacher , supra note 6; and supra note 17.

See Guttmacher , supra note 17, at 7 (emphasis added).

“Resolution No. 44 Therapeutic Abortion,” AMA House of Delegates (1970), as reprinted in Greenhouse Siegel , supra note 32, at 28–29.

For a recent discussion of the consequences of this framing, see Ahmed A. , “Medical Evidence and Expertise in Abortion Jurisprudence,” American Journal of Law and Medicine 41, no. 1 (2015): 84–116.

“The First Test-Tube Baby,” Time (July 31, 1978): 58–69; and Henig R. M. , Pandora's Baby: How the First Test Tube Babies Sparked the Reproductive Revolution (Boston: Houghton Mifflin, 2009): At 172.

Rohleder H. , Monographien uber die Zeugung beim Menschen, Die kunstlick Seugung [Befruchtung] im Tierreich, vol. 7 (G. Theime, 1921), published in English as Test Tube Babies: A History of the Artificial Impregnation of Human Beings (New York: Panurge Press, 1934).

Mosher E. M. , “Instrumental Impregnation,” Women's Medical Journal 22, no. 10 (1912): 223–224, at 223; and see Marsh Ronner , supra note 14, at 66–67, 69–70, 939–994. See also Swanson K. W. , “Adultery by Doctor: Artificial Insemination, 1890–1945,” Chicago-Kent Law Review 87, no. 2 (2012): 591–633, at 596–599.

Dickinson R. L. , “Address of the President: Suggestions for a Program for American Gynecology,” Transactions of the American Gynecological Society 45 (1920): 1–13, at 6.

Dickinson R. L. , “Artificial Impregnation: Essays in Tubal Insemination,” Transactions of the American Gynecological Society 45 (1920): 141–148; and Borell M. , “Biologists and the Promotion of Birth Control Research, 1918–1938,” Journal of the History of Biology 20, no. 1 (1987): 64–73. Guttmacher related that when he was in private practice in Baltimore, Dickinson asked him to arrange a lunch meeting with one of the local physician-abortionists, and the three doctors discussed the techniques the illegal abortionist used, and his safety record, which was impressively good. See Guttmacher , supra note 1, at 5.

See Swanson , supra note 44, at 605–607 and newspaper stories cited at n. 90; and Caldwell J. H. , “Babies by Scientific Selection,” Scientific American 150, no. 3 (1934): 124–125.

Stone H. M. Stone A. , A Marriage Manual: A Practical Guide-Book to Sex and Marriage , rev. ed. (New York: Simon & Schuster, 1935): At 138–139; and “‘Ghost’ Fathers: Children Provided for the Childless,” Newsweek, May 12, 1934, at 16.

Williams G. , The Sanctity of Life and the Criminal Law (New York: Knopf, 1966): 129.

Novak E. , The Woman Asks the Doctor (Baltimore: Williams & Wilkins, 1937): At 156–57.

Guttmacher A. F. , “Practical Experience with Artificial Insemination,” Journal of Contraception 3, no. 4 (1938): 75–77.

Id., at 75.

See Guttmacher , supra note 1, at 5.

See Guttmacher , supra note 52, at 75. As his confidence in the easy success of donor insemination increased, Guttmacher began to recommend a three month trial before making the invasive tests necessary to show female fertility if the woman was “apparently fertile.” Only if a woman failed to conceive with donor sperm would he then begin to look for an additional cause of the couple's childlessness in her physiology. Guttmacher A. F. , “The Role of Artificial Insemination in the Treatment of Human Sterility,” Bulletin of the New York Academy of Medicine (August 1943): 573–591, at 585–586.

See Guttmacher , supra note 52, at 75–76.

“13 Babies in N.Y. Have Test Tube as Father,” Chicago Daily Tribune, May 1, 1934; and Beardsley G. S. , “Artificial Cross Insemination,” Western Journal of Surgery, Obstetrics & Gynecology 48 (1940): 94–100, at 95.

See, e.g., Beardsley , supra note 57, at 95.

See Guttmacher , supra note 2, at 583.

See Guttmacher Pilpel , supra note 16, at 19.

See Cohen D. S. Connon K. , Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism (New York: Oxford University Press, 2015); Joffee C. , Doctors of Conscience: The Struggle to Provide Abortion before and after Roe v. Wade (Boston: Beacon Press, 1995): At 145–208. These trends have also been documented in the reports of the Guttmacher Institute, an independent research institute, renamed in honor of Guttmacher after his death. See Jaffe , supra note 13, at 1–2.

Seymour F. E. Koerner A. , “Medicolegal Aspect of Artificial Insemination,” Journal of the American Medical Association, 107, no. 19 (1936): 1531–1534.

See Swanson , supra note 45, at 592–593.

Derby A. , “Family Relations and Persons,” Annual Survey of American Law, 1942 (1942): 772–787 at 773, 784. For a review of the presumption in the contemporary context of assisted conception, see, for example, Froelich Appleton S. , “Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era,” Boston University Law Review 86, no. 2 (2006): 227–294, at 231–233; and Cahn , supra note 10, at 74–75.

See Seymour Koerner , supra note 61, at 1532.

Jonsen A. R. , The Birth of Bioethics (New York: Oxford University Press, 1998): At 357–358.

These forms were thus similar to forms used to evidence patient consent to surgery during this period in order to reduce medical malpractice liability, although the focus was less on avoiding medical liability than on preventing family law problems. Lombardo P. A. , “Phantom Tumors and Hysterical Women: Revising Our View of the Schloendorff Case,” Journal of Law, Medicine & Ethics 33, no. 4 (2005): 791–801, at 797–798.

See Seymour Koerner , supra note 62, at 1532.

Editorial, “Artificial Insemination and Illegitimacy,” Journal of the American Medical Association, 112, no. 13 (1939): 1832–1833.

See Seymour Koerner , supra note 62, at 1533; and Swanson , supra note 45, at 622–623.

See Guttmacher , supra note 52, at 77; and supra note 54 (1943), at 590.

See Guttmacher , supra note 51, at 75.

Guttmacher A. F. , “A Physician's Credo for Artificial Insemination,” Western Journal of Surgery, Obstetrics and Gynecology 50 (1942): 357–359; and “Role of Artificial Insemination in the Treatment of Infertility,” Journal of the American Medical Association 120, no. 6 (1942): 442–45, at 445.

Guttmacher gave a paper at the Second Congress on Obstetrics and Gynecology on April 9, 1942, which was published both in the Journal of the American Medical Association, and in summary form, in the Western Journal of Surgery, Obstetrics and Gynecology. Guttmacher (1942), supra note 73, at 443, 445 (listing 4 rules) and Guttmacher (1942), supra note 73, at 358 (listing five rules).

Guttmacher A. F. , “The Legitimacy of Artificial Insemination,” Human Fertility 11, no. 1 (1946): 16–17, at 17.

Sanitary Code of the City of New York, as amended Feb. 10, 1948, Article 7, Section 112, 79–80.

Position Paper 1–5, “Reproduction,” prepared by Alan Guttmacher F. , M.D. for Cleveland Health Goals Project, C 1964, The Welfare Federation, Cleveland, Ohio, (typescript), p. 15. Folder 29, Box 11, Guttmacher Papers.

Guttmacher A. F. , “Legal Abortion with and without a Law,” Address to Kansas Medical Society, April 30, 1969, Folder 7, Box 12, Guttmacher Papers.

Guttmacher A. F. , Statement before the Reference Committee H of the AMA, June 22, 1970, p. 1, Folder 42, Box 12, Guttmacher Papers.

Id., at 16.

Swanson K. W. , Banking on the Body: The Market in Blood, Milk and Sperm in Modern America (Cambridge: Harvard University Press, 2014): At 216–17.

139 N.E.2d.844 (Ill.App.Ct. 1956).

“Medicolegal Aspects of Artificial Insemination,” Journal of the American Medicl Association 157, no. 18 (1955): 1638–1640, at 1638–1639 (published after trial court decision, but before appellate court ruling).

Id., at 1640.

Farris E. J. Garrison M. Jr. , “Emotional Impact of Successful Donor Insemination,” Obstetrics and Gynecology 3, no. 1 (1954): 19–20; and Greenberg J. H. , “Social Variables in Acceptance or Rejection of Artificial Insemination,” American Sociological Review 16, no. 1 (1951): 86–91.

Letter from M. Edward Davis, M.D., Chairman, Department of Obstetrics and Gynecology, University of Chicago, to Dr. Wilfred Finegold, dated Dec. 11, 1963, copy in Folder 16, Box 11, Guttmacher Papers.

For example, Kleegman S. J. , “Therapeutic Donor Insemination,” Fertility and Sterility 5, no. 1 (1954): 7–30; and Guttmacher A. , “Medical Viewpoint,” in Buxton C.L. , ed., “Artificial Insemination: Genetic, Legal, and Ethical Implications: A Symposium,” Fertility & Sterility 9, no. 4 (1958): 369–370. See also Swanson, supra note 80, at 217–218.

Georgia Code Annotated, 19-7-21 (formerly 74–101.1)(1964).

Georgia Code Annotated, 43-34-42 (formerly 74–101.1)(1964). See also Oklahoma Statutes Annotated 10-551-553 (1967); Kansas Statutes Annotated 23–128 (1968).

Uniform Laws Annotated, Uniform Act on Parentage (1973) Section 5A.

See, for example, Finegold W. J. , Artificial Insemination, 1st ed. (Springfield, IL: Charles C. Thomas, 1964): At 51 (describing unmarried woman seeking insemination as mentally ill).

See Guttmacher , supra note 2, at 583.

Guttmacher A. F. , “Role of Artificial Insemination in the Treatment of Sterility,” Obstetrical and Gynecological Survey 15, no. 6 (1960): 767–785, at 775.

See Guttmacher , supra note 2, at 571.

See Guttmacher Pilpel , supra note 17, at 19.

See Jonsen , supra note 65, at 5; Stevens M. L. T. , Bioethics in America: Origins and Cultural Politics (Baltimore: Johns Hopkins University Press, 2000): At 37.

Tomes N. , “Patients or Health-Care Consumers? Why the History of Contested Terms Matters,” in Stevens R. A. Rosenberg C. E. Burns L. R. , eds., History and Health Policy in the United States: Putting the Past Back In (New Brunswick, NJ: Rutgers University Press, 2006): 83–110, at 84, 96. Note that I am not claiming that the roles of patient and consumer are mutually exclusive. For additional discussion of consumerism in reproductive medicine, see Madeira J. L. , “Conceiving of Products and Products of Conception: Theoretical Reflections on Commodification, Consumption, ART and Abortion,” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 293–306.

See Swanson , supra note 81, at 227–228.

See, for example, Ertman M. , “The Upside of Baby Markets,” in Goodwin M. B. , ed., Baby Markets: Money and the New Politics of Creating Families (New York: Cambridge University Press, 2010): At 23–40.

Faded, but not disappeared. In addition to financial barriers, racial and sexual orientation barriers to assisted reproduction still exist. Daar J. F. , “Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms,” Berkeley Journal of Gender, Law and Justice 23, no. 1 (2008): 18–81, at 35–47.

For a discussion of one recent example, see Althouse M. A. , “Creation of an Undue Burden: Arizona House Bill 2036 and State Abortion Regulations Post-Casey,” William & Mary Journal of Women and the Law 20, no. 1 (2013–14): 173–196.

See, e.g., Narayan Chandrika , “Kansas Court Says Sperm Donor Must Pay Child Support,” CNN, January 24, 2014, available at <http://www.cnn.com/2014/01/23/justice/kansas-sperm-donation/> (last visited May 13, 2015).

For example, Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010), §1557, as discussed in detail in Watson S. D. , “Section 1557 of the Affordable Care Act: Civil Rights, Health Reform, Race and Equity,” Howard Law Journal 55, no. 3 (2012): 855–885.

Tyler May E. , Barren in the Promised Land: Childless Americans and the Pursuit of Happiness (New York: Basic Books, 1995): At 33–36; and Marsh Ronner , supra note 15, at 20–21, 27.

Rao R. , “How (Not) to Regulate ARTs: Lessons from Octomom,” Albany Law Journal of Science & Technology 21, no. 2 (2011): 313–321, at 319–320.

For suggestions of regulation from a similar perspective, see Daar J. , “Regulating Reproductive Technologies: Panacea or Paper Tiger?” Houston Law Review 34, no. 3 (1997): 609–664, at 637–638, as discussed in Cahn, supra note 63, at 190, and Rao R. , “Equal Liberty: Assisted Reproductive Technology and Reproductive Equality,” George Washington Law Review 76, no. 6 (2008): 1457–1489.